Editorial: Justice lags on marriage equality

Jun. 21, 2012

Above: Family Research Council President Tony Perkins, right, finishes his speech denouncing gay marriage as a group of pastors from across denominational lines gather on Capitol Hill last month to show their support for the Defense of Marriage Act. At center, Reggie Mazyck holds an open letter addressed to President Barack Obama written by Harry R. Jackson Jr., senior pastor of Hope Christian Church in Beltsville, Md. / Associated Press FILE

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| A Journal News editorial

In the not-so-distant future, unless the Supreme Court gets packed with justices bent on rolling back the clock on fairness, same-sex marriage will become a ho-hum fact of life in all 50 states, no exceptions. Until then, expect court dockets to be laden with more and more lawsuits challenging unequal treatment, even in states where gay marriage is legal, as same-sex couples assert their rights and institutions seek to hold back the tide of history.

New York got on the right side of history one year ago, voting to legalize same-sex marriage. But that hardly ended the fairness debate, as two recent lawsuits make plain. In one action, a woman who works at St. Vincent’s Westchester is suing the Harrison hospital and its insurance carrier for refusing to provide health benefits to her wife.

The class-action suit, filed in U.S. District Court in Manhattan, challenges the federal Defense of Marriage Act of 1996, which defined marriage as a union between a man and a woman and allowed states to reject same-sex marriages formed elsewhere. A parade of federal judges and circuit courts of appeal have properly branded DOMA as unconstitutional, and the Obama administration — but not the GOP-controlled House — has refused to defend the law in court. But those victories are no solace to same-sex couples still being denied equal treatment.

“If the Defense of Marriage Act allows employers and insurance companies to have a double standard that affords us less benefits than other married couples, then it should be struck down,” the women said in a statement released through their attorneys. “No couple willing to make the commitment of marriage should be treated as second-class citizens.” Named in the suit are St. Joseph’s Medical Center in Yonkers, which operates St. Vincent’s, and Empire BlueCrossBlueShield.

Another DOMA lawsuit was featured in a New York Times article Thursday. An 83-year-old widow in Greenwich Village has paid more than $500,000 in inheritance taxes since her spouse died in 2009, two years after the couple married in Canada. The tax bill, according to the Times account, was more than $360,000 higher than it would have been if the federal government recognized her same-sex marriage. Such disparate treatment has been enshrined by our Washington leaders.

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While New York’s Marriage Equality Act allows same-sex couples to marry and have all the rights and benefits of heterosexual couples, the federal government takes a different course. DOMA codifies non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors’ benefits, and the filing of joint tax returns. A law professor in Philadelphia once counted more than 1,000 benefits attached to marriage under federal law alone.

Unconstitutional

“Sometimes it takes elected officials longer to get there than the American public,” City Council Speaker Christine Quinn told the newspaper; she plans to file a legal brief arguing that DOMA is unconstitutional. “But I really believe the American public wants Edith [Windsor, the plaintiff] to be treated the way that any widow would be treated.”

A federal judge in Manhattan has already ruled in Windsor’s favor, but the government is not done meddling. A group in the GOP-controlled House has appealed the ruling to the Second Circuit Court of Appeals. Further, MetroWeekly reported Thursday that the so-called Bipartisan Legal Advisory Group, in a filing in U.S. District Court in Connecticut, has asked the court to put a DOMA case there on hold until the Supreme Court weighs in on DOMA — meaning still longer waits for plaintiffs seeking death, insurance, pension, health care and family leave benefits.

The court’s reply should be swift and emphatic: justice has waited long enough.